Excerpt: - .....in these petitions is whether clause (b) or clause (d) of section 25 of the madras court-fees and suits valuation act of 1955 governs the two plaints filed in the trial court. on that will depend the determination of the valuation for the purpose of jurisdiction. the court of first instance took the view that clause (b) applied and not clause (d) of section 25. but this view was upset on appeal and it was held that the court-fee paid and the valuation made under clause (d) of section 25 were proper. these petitions are directed against the common order relating to both the plaints. the plaints have been filed by the same plaintiffs, the first of them being the mother, and the rest her sons and stepsons, the first defendant being the father of plaintiffs 2 to 6. the substance of the two.....

Judgment:ORDER

Veeraswami, J.

1. The question in these petitions is whether Clause (b) or Clause (d) of Section 25 of the Madras Court-fees and Suits Valuation Act of 1955 governs the two plaints filed in the trial Court. On that will depend the determination of the Valuation for the purpose of jurisdiction. The Court of first instance took the view that Clause (b) applied and not Clause (d) of Section 25. But this view was upset on appeal and it was held that the Court-fee paid and the valuation made under Clause (d) of Section 25 were proper. These petitions are directed against the common order relating to both the plaints. The plaints have been filed by the same plaintiffs, the first of them being the mother, and the rest her sons and stepsons, the first defendant being the father of plaintiffs 2 to 6. The substance of the two plaints is this. The properties which had been mortgaged by the first defendant on the foot of which the mortgagees had obtained decrees, belonged to the joint family and were not the separate properties of the first defendant. The plaintiffs would also have it that the properties belonging to the joint family were subsequently converted into a trust. On that basis they asked the Court to declare that the decrees obtained against the first defendant on the foot of the mortgages were null and void and not binding on the plaintiffs. The plaint case further was that the plaintiffs themselves were in possession and on that footing they sought a permanent injunction restraining the decree-holders from enforcing their decrees.

2. It is obvious that the suits were in effect to declare the title of the plaintiffs to the suit properties and on the basis of subsequent conversion of the co-parcenary properties into trust properties, the decree should be declared to be null and void. In other words, it is necessarily to be decided on the averments in the plaints whether the properties constituted the separate properties of the first defendant or belonged to the joint family in the first instance and later to the trust. The question thus raised, as it seems to me, having regard to the several recitals in the plaints, is one of title. That this is so will become obvious, for unless the title is declared, the declaration asked for by the plaintiffs that the decrees were null and void and not binding on them, can never follow.

3. It is well established that though a particular prayer has not been asked for, if it is found by the Court that it is necessarily implied in the plaint, it will proceed on the footing that the suit is one for such a prayer, and the Court-fee will have to be assessed on that basis and the valuation of the suit assessed accordingly. The learned District Judge was of the opinion that the principle of Irani v. Batcha Sahib : AIR1955Mad676 is applicable to the present plaints. That was a case in which the subsequent mortgagees challenged the propriety of the exercise of the power of sale reserved under an earlier mortgage and the learned Judges there held that the suit was not one with reference to immoveable property. I fail to see how this decision has any application to the plaints here in question. The power of sale clearly did not raise any question of title. In fact the learned Judges in the course of the judgment pointed that out.

4. Section 25(b) states that where the plaint prays for a declaration and for consequential injunction and the relief sought is with reference to any immoveable property fee shall be computed on one half of the market value of the property or on Rs. 300 whichever is higher. It is not disputed that this section will govern the valuation of the suits. Section 53 in fact is to the effect that in a suit as to whose value for the purpose of determining the jurisdiction of Courts, specific provision is not otherwise made in this Act or any other law, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same. The only question therefore is whether the instant plaint can be regarded as asking for reliefs with reference to immoveable properties. As I said, both the averments and the nature of the relief sought leave no room for doubt that it is essential for the plaintiffs to get the reliefs they want, to decide the question of title relating to the properties. Without deciding that question, it is impossible to dispose of the suits.

5. I hold, therefore, differing from the learned District Judge, that the plaints fall within the ambit of Section 25(b) of Madras Act XIV of 1955 and Court-fee should be paid and the valuation of the suits assessed on that basis. The Revision petitions are allowed. The orders of the learned District Munsif are restored. No costs.